On March 16, 2020 the U.S. District Court for the Central District of California reversed a $2.78 million jury verdict against Katy Perry for copyright infringement based on the similarities in the ostinato (“a short musical phrase or rhythmic pattern repeated in a musical composition”) in her song “Dark Horse” and a song by Marcus Gray aka Flame.  On November 1, 2016, Gray, a Christian rap artist, and his co-authors sued Katy Perry in their third amended complaint for “copying constituent elements” from the ostinato in his song “Joyful Noise.”[1] In considering Perry’s motion for judgment as a matter of law, the U.S. District judge Christina A. Snyder threw out the jury verdict because the ostinato in “Joyful Noise” was not distinctive enough to be worthy of copyright protection. Following on the heels of the Ninth Circuit’s en banc decision in Skidmore v. Led Zeppelin, the district court’s decision signals a possible shift in the courts in more heavily scrutinizing claims of copyright infringement involving two musical works.

Judge Snyder addressed Gray’s theory of copying—that the ostinato in “Dark Horse” was substantially similar to his ostinato in “Joyful Noise” and Perry had access to the ostinato. Regarding the substantial similarity analysis, Judge Snyder first used the extrinsic test of the Ninth Circuit, which requires the plaintiff to “identify concrete elements based on objective criteria that the works are similar.”[2] This inquiry asks “whether any elements of the ostinato in ‘Joyful Noise’ are individually protected.”[3] Judge Snyder recognized that certain elements of songs, such as “certain ‘tempos,’ a ‘recurring vocal phrase,’ repeating ‘hook phrases,’ ‘syncopation’” and other similar devices are not copyrightable, as they are common—“building blocks”—of the general composition of music.[4]

Gray argued that the ostinato at issue had at least five or six protectable elements, as his musicologist Dr. Todd Decker testified:

The length of the ostinato is similar, eight notes. The rhythm of the ostinato is similar. The melodic content, the scale degrees present. The melodic shape so the—the way the melody moves through musical space. Similar, the timbre of the quality and color of the sound is similar, and the use of the—the placement of this material . . .in the musical space of the recording in this mix, that is also similar.

Judge Snyder, however, found none of these elements are copyrightable. The court explained:

Dr. Decker did not provide testimony that each of the elements he identified are individually original.⁴ To the contrary, he testified that “[n]o one single … element” caused him to determine that the works contained protected features that were substantially similar. Trial Tr. at 524:4. “Any single one of those [elements] would not have been enough,” he conceded, “[i]f’s the combination of them” that supported his conclusion. Id. at 524:16-17.[5]

Because the court quoted only aspects of Dr. Decker’s testimony, it’s not clear if his testimony was that no single element was copyrightable in itself. Instead, it could be that Dr. Decker didn’t specifically testify to the issue of copyrightability of each element, but was opining that the combination of elements (and not simply a single element) was substantially similar. Nonetheless, the court ruled that Dr. Decker “did not provide testimony that each of the elements he identified are individually original.” (At least from the quoted testimony, it’s not clear that Dr. Decker was conceding that none of the individual elements was copyrightable in itself.)

Gray had the burden as the plaintiff to establish the protectability of each of these elements. The court recognized the individual elements as “precisely the kinds of commonplace elements that courts have routinely denied copyright protection, at least standing alone, as a matter of law.”[6]

Discussing the possibility of the combination of elements as being protectable, Judge Snyder cited the decisions in Swirsky v. Carey, 376 F.3d 841, 852 (9th Cir. 2004) (finding “[i]t cannot be said as a matter of law that seven notes is too short a length to garner copyright protection.”) and Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”). For the court, the eight note ostinato at issue was “not a particularly unique or rare combination, even in its deployment as an ostinato.”[7] The placement and fact that the ostinato was in a minor scale were simply not enough to make it protectable. Additionally, the ostinato’s “pingy synthesizer sound” was found to be common in modern pop music, a “trite note sequence” not deserving of the stamp of originality.[8]

The court went further. Even if combination of the ostinato’s elements were protectable, there was still no substantial similarity based on the test of virtual identity. Citing footnote 13 from the Ninth Circuit’s en banc Led Zeppelin decision, the district court held that the ostinato is entitled to only a thin copyright, which requires virtually identical copying to constitute infringement:

Here, because “the range of protectable expression” in an 8-note pop music ostinato comprised of individually unoriginal elements “is narrow”—see Gaste, 863 F.2d at 1068; 1 Nimmer on Copyright § 2.05 (2019)—the combination of unprotectable elements in defendants’ allegedly-infringing ostinato “would necessarily have to be ‘virtually identical” ’ to their counterparts in the plaintiffs’ ostinato “in order to be substantially similar.” Led Zeppelin, No. 16-56057, slip op. at 48 n. 13.

The two ostinatos at issue used different keys, tempos, harmonies, and rhythms—musicologists also testified that “Joyful Noise” proceeded in a 16-note cycle while “Dark Horse” proceeded in an 8-note cycle. Regarding variance in pitch, the court held:

The evidence in this case does not support a conclusion that the relevant ostinatos in “Dark Horse” and “Joyful Noise” are virtually identical. . . the pitches on the seventh and eighth beats of the “Joyful Noise” ostinato are different from the pitches on the corresponding beats of the “Dark Horse” ostinato: in “Joyful Noise,” the pitch sequence on these beats resolves up from B-A/F, while in “Dark Horse,” the pitch sequence on these beats resolves down from A-E. . . .

As for the intrinsic test—whether a lay person might find the concept and feel of the two ostinatos to be substantially similar—Gray relied on his song’s widespread dissemination online to establish access. The court ruled that enough evidence was presented that a jury could find Perry had reasonable access to Gray’s song, as “Joyful Noise” was played more than 6 million times on YouTube and MySpace.

Concerning Perry and the defendants’ other defenses and their arguments based on damages calculations, the court chose not to disturb the jury verdict, which it saw as being based on substantial evidence. For example, Perry offered extensive testimonial evidence that she created the ostinato in “Dark Horse” independently and without any knowledge of Gray’s “Joyful Noise,” but the jury was allowed to discredit such testimony. Perry ultimately prevailed, however, because the court found that Gray and his fellow plaintiffs’ claims failed to establish copyrightability of the ostinato or virtual identity with Perry’s ostinato under the extrinsic test.

What next? Expect Marcus Gray to appeal the decision to the Ninth Circuit. Given the en banc Ninth Circuit’s decision in Led Zeppelin, particularly footnote 13 that the district court quoted, one might expect a good chance the district court’s overturning of the jury verdict will stand–especially if the Ninth Circuit’s decision in Led Zeppelin was meant to endorse a greater role for courts to serve as gatekeepers in what is copyrightable in a musical work. Without having access to the record before the district court (especially tough to seek during this pandemic), we are curious to know:

1. Did the plaintiffs’ musicologist Dr. Decker fail to testify on the copyrightability of the individual elements in the ostinato–or did he outright concede that none is copyrightable in itself? The district court’s decision is easier to affirm if the latter.
2. Did the district court give a jury instruction on virtual identity as the test of infringement (the one referred to in footnote 13 of Led Zeppelin)? If not, was it proper for the district court to rule as a matter of law that no reasonable jury could have found virtual identity between the two ostinatos (instead of ordering a new trial with the proper jury instruction)? Perhaps it was given the apparent differences the district court identifies. (The failure to give the proper jury instruction could be harmless error.)

Songs

Joyful Noise by Flame (Marcus Gray)

Dark Horse by Katy Perry

Judge

Judge Christina Snyder

Decision [download]

Attorneys

Michael Kahn for Marcus Gray

Christine Lepera for Katy Perry, along with Jeffrey Movit, Aaron Wais, Gabriela Nourafchan of Mitchell, Silberberg & Knupp LLP, and Vincent Chieffo of Greenberg Traurig

Musicologists

Dr. Todd Decker for Marcus Gray

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[1] Gray et al. v. Perry et al., No, 2:15-CV-05642-CAS-Jcx, 2020 WL 1275136, at *1 (C.D. Cal. March 16, 2020).

[2] Id. at *3.

[3] Id. at *4.

[4] Id. at *5.

[5] Id.

[6] Id. at *6 (emphasis added).

[7] Id. at *10.

[8] Id. at *11.